"The First Amendment,
last time I looked, guarantees the right '... to petition the government.' It
doesn't say you can only petition two-thirds of the government." --Attorney Mark Goldstone, Bethesda, MD.

Supreme Court Monitor

CAPITOL STEPS

Tony
MauroAmerican Lawyer
Media06-10-2002A decision by the U.S. Court of Appeals for the D.C.
Circuit on May 31 expanded the free speech zone for demonstrations at the U.S.
Capitol. At the same time, the decision sharpened the First Amendment contrast
between Congress and the Supreme Court just a few hundred feet away.

At
the Supreme Court, protests are allowed on the public sidewalk in front of the
Court, but not on the marble plaza or steps leading up to the Court.

At
the Capitol, the tradition has been the opposite; no demonstrations on the
sidewalk ringing the Capitol within the Capitol grounds, but they are permitted
on the center steps of the Capitol's East Front.

In the D.C. Circuit's
decision in Lederman v. United States, a three-judge panel ruled that the
ban on demonstrating on the Capitol sidewalk violated the First Amendment. The
case was brought by New York artist Robert Lederman, who was arrested on the
sidewalk at the foot of the Senate steps by Capitol Police officers in 1997
after he refused to stop distributing leaflets on artists' rights.

Noting that the entire Capitol grounds has long been regarded as a
public forum, the opinion by Judge David Tatel said that the government had
failed to demonstrate why protests should be banned on the sidewalk or why
demonstrators there should be treated differently from the tourists, joggers,
and others who use the sidewalk.

"A single leafleteer standing on the
East Front sidewalk will no more likely block traffic or threaten security than
will photographers, star-struck tourists and landscape painters complete with
easels," Tatel wrote. Also on the panel were Judges Harry Edwards and Laurence
Silberman.

Will the warm glow of the Lederman decision radiate
over to the Supreme Court? One lawyer who closely read the ruling with that
question in mind is Mark Goldstone, a Bethesda, Md., solo practitioner who
represents Abe Bonowitz and six other demonstrators arrested for protesting
capital punishment on the Court steps in January. They face trial on June 27,
and several of the defendants are challenging their arrest on First Amendment
grounds.

Goldstone's view after reading the decision is that "the
Lederman case helps us generally, but not specifically. Anytime you have
a decision upholding public access to public places, it is a victory for us."

But as Goldstone points out, a different line of cases governs the First
Amendment balance at the Supreme Court. The 1983 decision in United States v.
Grace -- which was cited in Lederman -- avoided the issue of whether
Supreme Court grounds are a public forum, but struck down the part of a federal
law that prohibited demonstrations even on the public sidewalk around the Court.

The Grace opinion also noted, without disapproval, the
government's rationale for restricting demonstrations at the Court more severely
than demonstrations elsewhere: namely, that the public should not be allowed to
get the idea that the Supreme Court can be influenced or lobbied by the public
in the same way as the other branches. That rationale lingers today, and has led
to the dismissal of First Amendment challenges to arrests of demonstrators at
the Court. The Lederman ruling does nothing to weaken that argument.

Goldstone's only hope is that
Lederman gives his argument more momentum, enabling him to convince
federal judges that the courts-are-special argument is specious. "The First
Amendment, last time I looked, guarantees the right ... to petition the
government.' It doesn't say you can only petition two-thirds of the government."

Tony Mauro is Supreme Court correspondent for American Lawyer Media and

Legal Times. Mauro can be reached at tmauro@....Thanks to Terri Lynn
Day, AJIC CA. J.A.I.L., for sending this
article.

J.A.I.L. is an acronym for
Judicial Accountability Initiative LawJAIL's very informative website is
found at www.jail4judges.orgJAIL
proposes a unique new addition to our form of government.JAIL is powerful!
JAIL is dynamic! JAIL is America's ONLY hope!JAIL is spreading across
America like a fast moving wildfire!JAIL is making inroads into Congress for
federal accountability!JAIL may be supported at P.O. Box 207, N. Hollywood,
CA 91603To subscribe or be removed: add-remove-jail@...E-Groups may sign on at http://groups.yahoo.com/group/jail4judges/joinOpen forum to make your voice heard JAIL-SoundOff@egroups.comAsk not
what J.A.I.L. can do for me, but ask what I can do for J.A.I.L.

"..it does not require a majority to prevail, but
rather an irate, tireless minority keen to set brush fires in people's minds.."
- Samuel Adams

"There are a thousand hacking at the branches of
evil to one who isstriking at the
root."
-- Henry David Thoreau
<><

Your message has been successfully submitted and would be delivered to recipients shortly.